The business of trade restriction

On November 17, 1983, Ontario Attorney General Roy McMurtry rose in the legislature to introduce the first reading of the new Professional Engineers Act. In his remarks, he noted:

“It is by now axiomatic that self-governing licensing bodies exist only to serve the public interest. The financial or other interests of their members should not be a concern. The economic benefits that may inure to the possessors of a licence are a possible by-product of licensing, but they are not a reason for the legislature to confer the licensing power on a self-governing organization. A licence is an exclusive right to practise an occupation.

“As a general principle, every person should be free to utilize his or her abilities, education, training and experience in earning a livelihood. Therefore, it is wrong to create a restriction on this general principle by establishing licences unless this legislature is satisfied that licensing is necessary to protect the public.”

We are rightly proud of our exclusive right-to-practise licence. As former PEO president Peter DeVita, P.Eng., FEC, notes in his book, A Search for Advocacy: Creating the Canadian engineering profession, we, along with our sister regulators across Canada, are one of the few jurisdictions in the world with such an exclusive right-to-practise licence for engineering, on par with such other professions as medicine and law. Other engineering organizations may have an exclusive right to title—you cannot call yourself a chartered engineer in the UK without joining the appropriate engineering institution and fulfilling the necessary requirements—but there are not general restrictions on who can do engineering work. Here, you may claim to be a fully-qualified bridge designer, but without a valid licence issued by PEO, you cannot independently practise.

We are granted this privilege, as Hon. McMurtry stated, “only to serve the public interest.” Yes, we may make a living as “a possible by-product” of the licence, but he was clear that this is not a concern of the regulator. As our Code of Ethics states, “A practitioner shall regard the practitioner’s duty to public welfare as paramount.” It is also interesting to note how our profession differs in this regard with others. For example, in law or medicine, the practitioner’s duty of care is to protect the welfare and interests of the client or patient. For engineers, it is the welfare of the public as a whole that requires our top-most dedication.

THE REGULATOR’S ROLE

This exclusive right-to-practise licence means PEO is, in effect, in the business of restriction of trade. We enforce not just on title but on practice—we issue a licence to practise to only those qualified, and we may revoke that licence as a disciplinary penalty. In a free society, anyone should be able to earn a living using their talents and ingenuity. Society does not abide by arbitrary impediments that stand in the way of people earning an honest living. However, when public safety is at stake, restriction of trade is acceptable.

Society generally understands the rationale behind granting PEO such powers. It understands the safety risks of having unqualified people doing engineering work. Buildings and bridges shouldn’t collapse, vehicles shouldn’t pose a danger to drivers or those around them, the electrical power infrastructure should be safe and secure, and chemical plants should not fail and cause environmental damage. Society has been willing to restrict trade in these areas because the danger to the public of having unqualified work is obvious.

As we go about our business of regulating the profession, the significance of our exclusive right-to-practise licence must be top of mind. Without restriction of trade, our role fundamentally changes. We would become a membership-driven organization, like most other engineering bodies, who simply lobby for regulations, standards and other demand-side legislation, as well as our own self-interest. And without the clear link to public safety and welfare, this exclusivity is simply unjustifiable.

PUBLIC SAFETY IS PARAMOUNT

Despite our long history of public protection, we must tread carefully. Our stance on the repeal of the industrial exception had been based solely on safety arguments. We even presented research that made a clear link between the industrial exception and workplace injury—and even death. Yet the government decided the danger to the public was not a sufficient imperative to override the reluctance to impose further restrictions of trade by repealing that exception. The imperative was logical to us, but obviously, it was not to others.

The lesson of the non-repeal of the industrial exception must be heeded as we move forward in our profession. Engineering is evolving as it moves beyond such classical disciplines as civil, mechanical, electrical and chemical. But as we adapt to the world of an ever-expanding scope of professional engineering and the diversity in scopes of practice, we cannot lose sight of that necessary link between our right-to-practise licence and the protection of the public.

When we make claim to a new area of practice as being professional engineering, we are effectively saying that no one is now allowed to do that work without being appropriately licensed by PEO. And to justify this restriction of trade, the danger to the public’s safety and welfare must be made clear. For software engineering, for example, it’s clear that a nuclear station’s software-based control systems have such a safety argument. However, what about internet billing and transactions software?